Article 36 of the Family Code provides that “[a] marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations” shall be void.
In the landmark case of Tan-Andal v. Andal, G.R. No. 196359, 11 May 2021, the Supreme Court en banc held that psychological incapacity is not a medical but a legal concept. The Court stated that psychological incapacity need not be a mental or personality disorder or a permanent and incurable condition; hence, the testimony of a psychologist or psychiatrist is not mandatory in all cases.
The Tan-Andal ruling gave rise to a widespread perception that “the way to a more liberal grant of applications for nullity of marriage” has now been paved. Long-suffering spouses popped the champagne bottle looking forward to the time when they would be freed from the shackles of a loveless or abusive marriage.
However, there might be a need to manage expectations. Tan-Andal modified the evidentiary standard to prove psychological incapacity. Previously, case law had applied the standard of preponderance of evidence.[1] Tan-Andal, however, held that a petitioner spouse must now prove his or her case through the stricter standard of clear and convincing evidence. The Court justified the higher standard by citing the rule that a presumption can be rebutted only by clear and convincing evidence.
It is respectfully opined that the presumption of the validity of a marriage finds no application in a petition for nullification of marriage based on psychological incapacity and that a petitioner should be allowed to prove his or her case by a preponderance of evidence. In his concurring opinion in Tan-Andal, Justice Mario V. Lopez wrote that he saw no reason for deviating from the preponderance standard and that imposing a higher threshold of evidence would make it more burdensome for a party to be released from a marriage void ab initio.
The presumption of the validity of a marriage is laid down in Section 3(aa), Rule 131 of the Rules of Evidence which provides “[t]hat a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.”[2] This presumption rests on the great likelihood that couples who consider themselves married are probably married.[3] If a man and woman were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law.[4] It serves the important interest of helping parties establish what might otherwise be hard or impossible to prove.[5]
For the presumption to apply, the man and the woman must be “deporting themselves as husband and wife.” This is hardly the case when one spouse has filed a petition for nullification of the marriage against the other. Since the presumption of marriage validity is inapplicable, there is likewise no presumption that the parties are psychologically capacitated to comply with their marital obligations. No public policy is advanced by seeking to preserve a dysfunctional marriage. Of course, the burden of proof is with the petitioner to show psychological incapacity, but he or she can establish this by a preponderance of evidence as is the norm pursuant to Section 1, Rule 133 of the Rules of Evidence.
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[1] Antonio v. Reyes, 484 SCRA 353, 376 (2006), Tinga, J.
[2] Emphasis supplied.
[3] CHRISTOPHER MUELLER, LAIRD KIRKPATRICK, & LIESA RICHTER, EVIDENCE 123 (6th ed., [Kindle] 2018).
[4] Tan-Andal v. Andal.
[5] 1 CLARK, LAW ON DOMESTIC RELATIONS IN THE UNITED STATES §2.7 (2d ed. 1987).
